Animal Law and Legislation

Line Drawing

Law is about drawing lines. Over time, the lines shift. For instance, the lines between blacks and whites, men and women, gays and straights have, thankfully, moved dramatically in the past several decades. The time has come to question another line the law has drawn:  between the animals we love and those we eat or wear.

Questioning Business as Usual

There are encouraging signs that the legal lines between pets and farmed animals are being eroded. Following the lead of Florida, Arizona, Oregon and Colorado, last year California passed Proposition 2, which ensured that laying hens, pregnant pigs and calves raised for veal will have access to a minimum amount of space for at least part of each day. Last month the California Assembly passed a bill that would prohibit the sale of eggs from chickens confined to the battery cages made illegal in the state by Proposition 2, thus protecting California egg producers from competition from farmers in states without similar anti-cruelty provisions. The bill is now in the state Senate.

Another encouraging sign was a decision handed down last year by the New Jersey Supreme Court which unanimously rejected the New Jersey Department of Agriculture’s blanket determination that all “routine” animal husbandry practices were “humane,” such as docking the tales of cattle without anesthesia. The Court recognized that simply because a practice is common and accepted by the meat industry does not mean that it is exempt from anti-cruelty legislation. Apparently, our legal system is beginning to open its eyes and is taking a critical look at the inhumane practices that pass for business as usual.

One of These Things Is Not Like the Other

Of course, no state’s cruelty laws prohibit the killing of animals for food, but this huge exemption warrants examination: is it a line of convenience or of logic? In the U.S., many people are opposed to the slaughter of horses for food, while in other countries horse meat is commonly eaten. Indeed, the abhorrence of Americans to the slaughter of horses is so strong that Congress considered legislation last year to ban the practice (it stalled in the Senate). In many states, including California, it is illegal to sell horsemeat for human consumption. What, other than our emotional ties to the likes of Black Beauty and Mr. Ed, is the relevant difference between a horse and a cow? Is the perceived beauty of a species a sound basis for distinction? In my opinion it’s illogical and hypocritical to shed tears for the suffering of one species of animal, yet endorse the inhumane treatment of another species equally capable of experiencing pain. Other cultural and arbitrary examples abound—cows are sacred in India, and dogs are eaten in many parts of Asia, for instance.

Interestingly, in California it is a misdemeanor to sell, trade or give away “any animal traditionally or commonly kept as a pet or companion with the intent of using or having another person use any part of that carcass for food.” California Penal Code section 598b(a). The law accepts tradition in lieu of rationality. I wonder how many animal rights advocates would have to keep a pig or a chicken as a pet before it would meet the definition of “common”? Of course, the legislators were careful to include a blanket exemption for livestock, “agricultural commodities” and wildlife, which begs the question: If someone raises dogs on a farm with the intention of selling them for meat, then are they not, by definition, a farmed animal kept for use and profit (i.e., “livestock”) and thus exempt? When the law is guided by arbitrary discrimination instead of logic, the lines it draws cannot hold up to scrutiny.

An End to Injustice

My point, of course, is not that dogs, cats and horses should not be afforded the protection of the law, but rather, that the lines we draw should be drawn consciously and logically. Arbitrariness is a hallmark of injustice. Convenience, profit and tradition have been used to justify slavery, misogyny, and genocide, and they are currently being used to justify the mistreatment of animals. Hopefully, someday soon, we will hold ourselves to a higher standard—that of fairness, compassion, and logic—and afford all sentient beings the right to live free from unnecessary pain and suffering.

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Following her graduation from Boalt Hall in 1999, M. Renée Orth practiced business litigation in California with emphasis on employment, real estate and banking law. She now focuses on philanthropic efforts while indulging her passions for vegetarian cooking and traveling.